Totten v. Burhans

• Decision Date: 06 May 1892
• Citation: 51 N.W. 1119,91 Mich. 495
• Court: Michigan Supreme Court
• Parties: TOTTEN v. BURHANS.

51 N.W. 1119

91 Mich. 495

TOTTEN v. BURHANS.

Supreme Court of Michigan

May 6, 1892

Error to circuit court, Shiawassee county; WILLIAM NEWTON, Judge.

Trespass on the case by Frank M. Totten against Daniel Burhans. Verdict and judgment for plaintiff. Defendant brings error. Reversed.

Watson & Chapman, for appellant.

S F. Smith and G. R. Lyon, for appellee.

MORSE C.J.

The plaintiff commenced suit in the circuit court for the county of Shiawassee against the defendant in trespass on the case claiming damages for fraud, and recovered verdict and judgment for $1,237.50. Totten on the 4th day of February 1889, bought out the interest of Burhans in the Owosso Cigar & Candy Company, a copartnership doing business at Owosso. Adelbert Chase at the time of this purchase was a partner with Burhans, and after the sale continued as a partner of Totten. Chase had but little money in the concern, but traveled for the firm, and it would seem put his services and experience against the money of Totten as the record shows, from plaintiff's testimony as well as other evidence, that he was an equal partner in the profits of the business. The declaration alleged the fraud to have consisted in the representations of Burhans that the business of said Owosso Cigar & Candy Company, for a long time prior to said sale of his interest to plaintiff, had been "a good, profitable, paying, and remunerative business," and that Burhans and Chase had realized, and were then receiving, large profits from such business, and that said plaintiff could not fail to receive $2,000 net profits per year from such business. And that certain accounts and demands belonging to said company against divers persons, customers of said company, amounting to the sum of $7,000, purchased by said plaintiff with said business, were good and collectible, and actually owing to said firm or company; that they would be paid promptly, and were all and each of them worth their face value, dollar for dollar. The declaration further alleged the falsity of these representations, and that, by means of the premises, the defendant defrauded the plaintiff, so that he not only lost the money he paid to purchase defendant's interest, to wit, $2,000, but was deprived of his good and fair reputation as a business man, and was damaged by the loss of the accounts not collectible and his labor and services for one year. The testimony shows that Totten paid $2,000 down, which was about the value of the Burhans interest in the stock on hand, received from Burhans between $6,000 and $7,000 worth of accounts, and agreed to and did assume the old indebtedness of the firm to about the sum of $7,000. After running the business about a year, plaintiff sold out to Burhans to whom the firm was indebted for indorsements, losing his $2,000, and being indebted besides in a large sum of money on account of the business, which had proven unprofitable under his management. The court instructed the jury that the only damages that the plaintiff could recover...